Waters of the United States (WOTUS): Frequently Asked Questions About the Scope of the Clean Water Act
Changes from June 22, 2023 to June 23, 2025
This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with red strikethrough and textual matter added in the later version is indicated with blue.
Contents
- What Actions Have Previous Administrations Taken to Define WOTUS?
- Pre-2015 Rules and Guidance
- 2015 Clean Water Rule
- 2020 Navigable Waters Protection Rule
- 2023 WOTUS Rule and 2023 Conforming Rule
- Jurisdictional Waters (WOTUS)
- Exclusions
- Definitions
- Which Rule Is in Effect Now?
- Have the 2023 WOTUS Rule or 2023 Conforming Rule Been Challenged in Court?
- How Did Sackett v. EPA Affect the Scope of CWA Jurisdiction?
- What Actions Has the Second Trump Administration Taken to Define WOTUS?
- How Have Adjacent Wetlands Been Addressed in Each of the WOTUS Regulations?
- What Options Are Available to Congress Regarding the Definition of WOTUS?
Summary
Congress established the Federal Water Pollution Control Act, also known as the Clean WaterCorps of Engineers (Corps) and the Environmental Protection Agency (EPA)—the two agencies Corps of Engineers (Corps) and the Environmental Protection Agency (EPA)—the two agencies
to the meaning of WOTUS has been debated and litigated for more than four decades. The Supreme Court and lower courts to the meaning of WOTUS has been debated and litigated for more than four decades. The Supreme Court and lower courts
have also weighed in on the scope of the term.have also weighed in on the scope of the term.
(These regulations, as further interpreted by the courts and agencies(These regulations, as further interpreted by the courts and agencies, are often referred to as the are often referred to as the pre-2015
supplemented these regulations with guidance, which they developed in response to supplemented these regulations with guidance, which they developed in response to
the scope of the federal governmentthe scope of the federal government
not provide the public or agency staff with the information needed to ensure timely, predictable, and consistent jurisdictional not provide the public or agency staff with the information needed to ensure timely, predictable, and consistent jurisdictional
determinations. Diverse stakeholders and determinations. Diverse stakeholders and some Members of Congress requested a formal rulemaking to revise existing regulations.Members of Congress requested a formal rulemaking to revise existing regulations.
strong reactions from a variety of stakeholders, with numerous groups filing lawsuits challenging the rules. strong reactions from a variety of stakeholders, with numerous groups filing lawsuits challenging the rules.
2023, the Corps and EPA, under the Biden Administration, 2023, the Corps and EPA, under the Biden Administration, also issued a rule
the agenciesthe agencies
redefine WOTUS in a durable regulation, updating the pre-2015 rules to reflect consideration of past Supreme Court redefine WOTUS in a durable regulation, updating the pre-2015 rules to reflect consideration of past Supreme Court
decisions, science, and the agenciesdecisions, science, and the agencies
than the than the 2015 Clean Water Rule and more broadly than the Clean Water Rule and more broadly than the 2020 Navigable Waters Protection Rule.Navigable Waters Protection Rule.
implementation of the 2023 WOTUS Rule in a total of 27 implementation of the 2023 WOTUS Rule in a total of 27 (later reduced to 26) states and as applied to several associations that states and as applied to several associations that
approach taken by a four-Justice plurality in the 2006 case approach taken by a four-Justice plurality in the 2006 case Rapanos v. United States and rejected elements of the and rejected elements of the
jurisdictional test that are present in the 2023 WOTUS Rule. jurisdictional test that are present in the 2023 WOTUS Rule.
also to also to
In the 119th Congress, Members may seek to oversee the Corps and EPA's efforts to implement existing regulations or their efforts to promulgate new regulations. Some in Congress may also consider introducing legislation to define the scope of WOTUS—to clarify its intent as to the scope of the term—given the challenges each of the past three Administrations has faced in establishing lasting regulations. Others may support maintaining the current statutory language.
Congress established the Federal Water Pollution Control Act, also known as the Clean ongress established the Federal Water Pollution Control Act, also known as the CleanWater Act (CWA), to restore and protect the quality of the nationWater Act (CWA), to restore and protect the quality of the nation
States (WOTUS). The scope of the term determines which waters are federally regulated, and (WOTUS). The scope of the term determines which waters are federally regulated, and
thus which waters are subject to CWA requirements and programs. These include CWA thus which waters are subject to CWA requirements and programs. These include CWA
permitting requirements; water quality certifications; water quality standards, impaired waters, permitting requirements; water quality certifications; water quality standards, impaired waters,
and total maximum daily loads; and other CWA and non-CWA programs.and total maximum daily loads; and other CWA and non-CWA programs.
purpose of implementing various requirements of the CWA. Prior to the Biden Administration, purpose of implementing various requirements of the CWA. Prior to the Biden Administration,
executive branch efforts to define WOTUS administratively included regulations promulgated by executive branch efforts to define WOTUS administratively included regulations promulgated by
the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) in the the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) in the
1980s and supplemented with interpretive guidance developed in response to Supreme Court 1980s and supplemented with interpretive guidance developed in response to Supreme Court
rulings; the 2015 Clean Water Rule; and the 2020 Navigable Waters Protection Rule.rulings; the 2015 Clean Water Rule; and the 2020 Navigable Waters Protection Rule.
Administrations were controversial and led to litigation. Many observers viewed the Obama Administrations were controversial and led to litigation. Many observers viewed the Obama
narrowly. A federal district court vacated the 2020 Navigable Waters Protection Rule in narrowly. A federal district court vacated the 2020 Navigable Waters Protection Rule in
September 2021, after which the Corps and EPA announced that they had halted implementation September 2021, after which the Corps and EPA announced that they had halted implementation
of the rule.of the rule.4
the definition of WOTUS.the definition of WOTUS.
WOTUS Rule was to redefine WOTUS in a durable regulation, updating the pre-2015 WOTUS Rule was to redefine WOTUS in a durable regulation, updating the pre-2015
reflect consideration of Supreme Court decisions, science, and the agenciesreflect consideration of Supreme Court decisions, science, and the agencies
technical expertise.technical expertise.
observing that the rule observing that the rule
Navigable Waters Protection Rule.Navigable Waters Protection Rule.
arguing that it arguing that it
8 While no court has issued a ruling on the merits of the rule, some courts have issued orders While no court has issued a ruling on the merits of the rule, some courts have issued orders
that temporarily temporarily
litigation challenging the 2023 WOTUS Rule, in May 2023, the Supreme Court issued its ruling litigation challenging the 2023 WOTUS Rule, in May 2023, the Supreme Court issued its ruling
in in Sackett v. EPA..9 In In Sackett, the Court construed the reach of the CWA more narrowly than the , the Court construed the reach of the CWA more narrowly than the
new or previous regulatory interpretations or the approach adopted by the courts of appeals new or previous regulatory interpretations or the approach adopted by the courts of appeals
following an earlier Supreme Court decision regarding WOTUS.following an earlier Supreme Court decision regarding WOTUS.
10
Following the Court's ruling, the Corps and EPA published a conforming rule (hereinafter 2023 Conforming Rule) amending key aspects of the 2023 WOTUS Rule to align with the Sackett decision.11 Currently, the 2023 WOTUS Rule, as amended by the 2023 Conforming Rule, is in effect in a patchwork of states. In states where courts have temporarily barred the 2023 WOTUS Rule, the Corps and EPA assert that they are implementing the pre-2015 regulations consistent with Sackett.12
On March 12, 2025, the second Trump Administration announced its intent to revise the definition of WOTUS again through new rulemaking.13 The same day, the Corps and EPA also issued new guidance, to clarify how Corps and EPA staff should implement certain aspects of the Sackett ruling, and announced they would be holding listening sessions to gather feedback from stakeholders on how to revise the definition of WOTUS.14This report addresses frequently asked questions about WOTUS, including actions taken by the last several Administrations to define WOTUS, the Supreme Court's ruling in Sackett v. EPA, implementation of the Sackett decision, and options for Congress.
What Actions Have Previous Administrations Takento Define WOTUS?
Pre-2015 Rules and Guidance
For much of the past several decades, regulations promulgated by the Corps and EPA in 1986 and For much of the past several decades, regulations promulgated by the Corps and EPA in 1986 and
1988, respectively1988, respectively
interpretive guidance developed in response to Supreme Court rulings related to the scope of the interpretive guidance developed in response to Supreme Court rulings related to the scope of the
federal governmentfederal government
WOTUS. In WOTUS. In Rapanos v. United States, the Court considered the extent of CWA jurisdiction over , the Court considered the extent of CWA jurisdiction over
wetlands near ditches or man-made drains that emptied into traditional navigable waters.wetlands near ditches or man-made drains that emptied into traditional navigable waters.
controlling majority for a single standard to govern future jurisdictional disputes.controlling majority for a single standard to govern future jurisdictional disputes.18 Instead, the Instead, the
decision resulted in two alternative tests for evaluating jurisdictional waters: a decision resulted in two alternative tests for evaluating jurisdictional waters: a
Rapanos and the "Relatively Permanent" and "Significant Nexus" Tests
The Plurality's "Relatively Permanent"the word the word
flowing bodies of waterflowing bodies of water
21 Justice Kennedy
Kennedy wrote that the Corps should determine on a case-by-case basis whether wetlands have a Kennedy wrote that the Corps should determine on a case-by-case basis whether wetlands have a
situated properties, significantly impacts the chemical, physical, and biological integrity of a traditionally navigable situated properties, significantly impacts the chemical, physical, and biological integrity of a traditionally navigable
water.water.
offices should implement the Courtoffices should implement the Court
waters meeting waters meeting either the relatively permanent standard articulated by Justice Scaliathe relatively permanent standard articulated by Justice Scalia
significant nexus standard articulated by Justice Kennedysignificant nexus standard articulated by Justice Kennedy
under the act.under the act.
provide the public or agency staff with the information needed to ensure timely, predictable, and provide the public or agency staff with the information needed to ensure timely, predictable, and
consistent jurisdictional determinations.consistent jurisdictional determinations.
Congress, states, the regulated community, and nongovernmental organizations—requested a Congress, states, the regulated community, and nongovernmental organizations—requested a
As discussed in more detail in later sections (see "Which Rule Is in Effect Now?"), the pre-2015 regulations, consistent with the Supreme Court ruling in Sackett v. EPA, are currently in effect in 26 states that are participating in a pending litigation rule related to the Biden Administration's rule to define WOTUS. The 2023 WOTUS Rule, as amended by the 2023 Conforming Rule, discussed below (see "2023 WOTUS Rule and 2023 Conforming Rule"), is in effect in the remaining 24 states, the District of Columbia, and the U.S. territories.
2015 Clean Water RuleIn 2015, under the Obama Administration, the Corps and EPA issued the Clean Water Rule, which redefined WOTUS in the agencies' regulations for the first time since the 1980s.26 The Clean Water Rule retained aspects of the agencies' earlier guidance and also incorporated new features, including a new definition of tributaries and definitions and criteria related to adjacency.27
Some stakeholders and observers viewed the Clean Water Rule as an expansion of CWA jurisdiction, while others argued that it excluded too many waters from federal jurisdiction.28 Numerous parties challenged the Clean Water Rule, and some district courts issued preliminary injunctions temporarily barring the Clean Water Rule from taking effect in certain states.29 Two courts also remanded the rule to the Corps and EPA, concluding that it violated the courts also remanded the rule to the Corps and EPA, concluding that it violated theAdministrative Procedure Act (APA) and exceeded the agenciesAdministrative Procedure Act (APA) and exceeded the agencies
CWA.CWA.
states. In states that were subject to a preliminary injunction or an order remanding the rule to the states. In states that were subject to a preliminary injunction or an order remanding the rule to the
Corps and EPA, the pre-2015 regulatory framework applied.Corps and EPA, the pre-2015 regulatory framework applied.
2020 Navigable Waters Protection Rule
The The first Trump Administration described the Clean Water Rule as an example of federal Trump Administration described the Clean Water Rule as an example of federal
" and the Corps and EPA engaged in a two-step process to rescind and revise it.and the Corps and EPA engaged in a two-step process to rescind and revise it.
Corps and EPA rescinded the Clean Water Rule and recodified the pre-2015 regulations.Corps and EPA rescinded the Clean Water Rule and recodified the pre-2015 regulations.
32 Accordingly, the pre-2015 regulations and guidance were in effect beginning on the effective date Accordingly, the pre-2015 regulations and guidance were in effect beginning on the effective date
of the Step One Rule (December 23, 2019), and until the agenciesof the Step One Rule (December 23, 2019), and until the agencies
into effect. In April 2020, the Corps and EPA published a final Step Two Rule to redefine into effect. In April 2020, the Corps and EPA published a final Step Two Rule to redefine
WOTUS, titled the Navigable Waters Protection Rule.WOTUS, titled the Navigable Waters Protection Rule.
2020, replacing the Step One Rule.2020, replacing the Step One Rule.
were considered WOTUS (and were therefore under federal jurisdiction) compared to both the were considered WOTUS (and were therefore under federal jurisdiction) compared to both the
Clean Water Rule and the pre-2015 rules. As with the Clean Water Rule, the Navigable Waters Clean Water Rule and the pre-2015 rules. As with the Clean Water Rule, the Navigable Waters
Protection Rule prompted a range of reactions from a variety of stakeholders and resulted in Protection Rule prompted a range of reactions from a variety of stakeholders and resulted in
many lawsuits around the country.many lawsuits around the country.
immediately upon taking office.immediately upon taking office.
definition of WOTUS again, the Corps and EPA asked courts where legal challenges to the definition of WOTUS again, the Corps and EPA asked courts where legal challenges to the
Navigable Waters Protection Rule were pending to remand the rule while they developed a new Navigable Waters Protection Rule were pending to remand the rule while they developed a new
regulation.regulation.
' request for voluntary remand, but also vacated the rule.request for voluntary remand, but also vacated the rule.
the merits of the Navigable Waters Protection Rule, it found that both the plaintiffs and the United the merits of the Navigable Waters Protection Rule, it found that both the plaintiffs and the United
States had identified concerns with the rule that involved fundamental, substantive, and incurable States had identified concerns with the rule that involved fundamental, substantive, and incurable
The Corps and EPA asserted that their intent in promulgating the 2023 WOTUS Rule was to redefine WOTUS in a durable regulation, updating the pre-2015 regulations to reflect consideration of Supreme Court decisions, science, and the agencies' experience and technical expertise.40 Overall, the definition of WOTUS in the 2023 WOTUS Rule was narrower in scope than in the Clean Water Rule and broader than in the Navigable Waters Protection Rule.
In May 2023, shortly after the issuance of the 2023 WOTUS Rule, the Supreme Court issued a decision in a WOTUS-related case—Sackett v. EPA.41 As discussed in more detail below (see "How Did Sackett v. EPA Affect the Scope of CWA Jurisdiction?"), the ruling significantly narrowed the scope of WOTUS in comparison to all prior regulatory regimes. Most notably, the Supreme Court rejected the significant nexus standard, adopted the Rapanos plurality's relatively permanent standard, and narrowed the scope of adjacent wetlands that are considered WOTUS.42
In response to the ruling, the Corps and EPA promulgated a new rule that amended the 2023 WOTUS Rule to conform the rule's definition of WOTUS to the Sackett decision.43 The agencies promulgated the rule (the 2023 Conforming Rule) without first publishing a proposed rule and providing an opportunity for public notice-and-comment procedures. The rule went into effect on September 8, 2023, the day it was published in the Federal Register.44
The 2023 WOTUS Rule, as amended by the 2023 Conforming Rule, is divided into three parts: jurisdictional waters (WOTUS), exclusions, is divided into three parts: jurisdictional waters (WOTUS), exclusions,and definitions. These parts are summarized belowand definitions. These parts are summarized below
guidance.guidance.
Jurisdictional Waters (WOTUS)
The 2023 WOTUS RuleThe 2023 WOTUS Rule, as amended by the 2023 Conforming Rule, includes seven WOTUS categories includes seven WOTUS categories (Table 1).
45 Table 1. Description of Jurisdictional Waters (WOTUS) Under the 2023 WOTUS Rule
Category of WOTUS
Description
Traditional Navigable Waters
(a)(1)
from the coast.
(a)(1)
Impoundments of Jurisdictional Waters
(a)(2)
Tributaries
territorial seas, interstate waters, or impoundments of jurisdictional territorial seas, interstate waters, or impoundments of jurisdictional
waters. Tributaries are WOTUS if they meet waters. Tributaries are WOTUS if they meet
(a)(3)
surface connection to either relatively permanent jurisdictional surface connection to either relatively permanent jurisdictional
impoundments or jurisdictional tributaries that meet the relatively impoundments or jurisdictional tributaries that meet the relatively
permanent standard. Wetlands, Wetlands, as defined in the rule, generally include swamps, marshes, bogs, defined in the rule, generally include swamps, marshes, bogs,
and similar areas. and similar areas.
(a)(4)
"Additional waters"—intrastate lakes and ponds, streams, or wetlands
Intrastate lakes and ponds that do not fall under one of the other WOTUS categories. Such waters are jurisdictional if they meet the relatively permanent standard and have a continuous surface connection to certain jurisdictional waters—(a)(1) or (a)(3) waters.
(a)(5)
Sources: CRS analysis; Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA), "Revised Definition of 'Waters of the United States,'" 88 Federal Register 3004, January 18, 2023; Corps and EPA, Final Rule: Revised Definition of "Waters of the United States" Fact Sheet, December 2022; Corps and EPA, "Revised Definition of 'Waters of the United States'; Conforming," 88 Federal Register 61964, September 8, 2023; Corps and EPA, Fact Sheet for the Final Rule: Amendments to the Revised Definition of "Waters of the United States," August 2023.
Notes: WOTUS = waters of the United States.
a. Agency regulations defining WOTUS are codified at 33 C.F.R. § 328.3 and at 40 C.F.R. § 120.1. Traditional Navigable Waters, the Territorial Seas,(Paragraph (a)(1) Waters)
pre-2015 regulations.pre-2015 regulations.
interstate waters. However, the agencies restructured the rule to streamline the regulatory textinterstate waters. However, the agencies restructured the rule to streamline the regulatory text
and combined these three still-separate categories under one paragraph (i.e., (a)(1) waters) and combined these three still-separate categories under one paragraph (i.e., (a)(1) waters)
because, as the agencies explain in the rulebecause, as the agencies explain in the rule
of waters relies on their connection to waters from one of these three categories.of waters relies on their connection to waters from one of these three categories.
In the 2023 Conforming Rule, the Corps and EPA deleted interstate wetlands from the interstate waters category to align with the ruling in Sackett.48 In contrast, the text of the pre-2015 regulations still includes interstate wetlands as part of the interstate waters category.49 However, the Corps and EPA have indicated that even where the pre-2015 regulations are in place, the agencies are interpreting WOTUS consistent with Sackett.50 As specified in a September 27, 2023, guidance memorandum, "under the pre-2015 regulatory regime, consistent with Sackett, the agencies ... will not assert jurisdiction over interstate wetlands solely because they are interstate."51
Impoundments of Jurisdictional Waters The 2023 WOTUS Rule also retained the impoundments of jurisdictional waters category with one the impoundments of jurisdictional waters category with onechange from the pre-2015 regulations.change from the pre-2015 regulations.
WOTUS, but the 2023 WOTUS Rule WOTUS, but the 2023 WOTUS Rule
jurisdictional under paragraph (a)(5), which the Corps and EPA in their fact sheet jurisdictional under paragraph (a)(5), which the Corps and EPA in their fact sheet
the the
the definition of WOTUS from pre-2015 regulations, but include changes that the definition of WOTUS from pre-2015 regulations, but include changes that
reflect Supreme Court precedent, science, and reflect Supreme Court precedent, science, and
WOTUS Rule WOTUS Rule
permanent standard or the significant nexus standard for purposes of determining jurisdiction.permanent standard or the significant nexus standard for purposes of determining jurisdiction.
These changes are described below.
water, or an impoundment of a jurisdictional water and also meets water, or an impoundment of a jurisdictional water and also meets
relatively permanent relatively permanent
standard.58
As compared to the pre-2015 regulations, the 2023 WOTUS RuleAs compared to the pre-2015 regulations, the 2023 WOTUS Rule
territorial seas to the list of waters to which a water may be a tributary. The territorial seas to the list of waters to which a water may be a tributary. The
agencies agencies
will reach a traditional navigable water before they reach the territorial seas.will reach a traditional navigable water before they reach the territorial seas.
59
The 2023 WOTUS RuleThe 2023 WOTUS Rule, as amended by the 2023 Conforming Rule, also deletes the also deletes the
list of waters to which a water may be a tributary.list of waters to which a water may be a tributary.
included the comparable included the comparable
61Similar to the pre-2015 regulations, the 2023 WOTUS ruleSimilar to the pre-2015 regulations, the 2023 WOTUS rule, as amended by the 2023 Conforming Rule, does not contain a does not contain a
definition of definition of
on their flow regime (i.e., meaning whether they flow year-round, seasonally, or on their flow regime (i.e., meaning whether they flow year-round, seasonally, or
However, following the Sackett ruling, the Corps and EPA indicated that in eliminating the significant nexus test, jurisdictional tributaries must meet the relatively permanent standard.64 This is true for areas that fall under the 2023 WOTUS Rule, as amended by the 2023 Conforming Rule, as well as in areas that fall under the pre-2015 regime.65 The agencies defined "relatively permanent" in the 2023 WOTUS Rule preamble to encompass "surface waters that have flowing or standing water year-round or continuously during certain times of the year."66 The agencies further specified that "relatively permanent waters do not include surface waters with flowing or standing water for only a short duration in direct response to precipitation."67
Adjacent wetlands. Under the 2023 WOTUS Rule, as amended by the 2023 Conforming Rule, adjacent wetlands areinterstate waters, or the territorial seas; interstate waters, or the territorial seas; or (2) they are adjacent to and (2) they are adjacent to and
continuous surface connection to jurisdictional impoundments or tributaries that continuous surface connection to jurisdictional impoundments or tributaries that
meet the relatively permanent standardmeet the relatively permanent standard
2015 regulations more broadly included wetlands adjacent to waters in any of the 2015 regulations more broadly included wetlands adjacent to waters in any of the
WOTUS categories, other than wetlands themselvesWOTUS categories, other than wetlands themselves
Rapanos Guidance provided additional specifics as to which wetlands were Rapanos Guidance provided additional specifics as to which wetlands were
WOTUS, as discussed WOTUS, as discussed
On March 12, 2025, the Corps and EPA issued guidance (the 2025 Continuous Surface Connection Guidance) specific to implementation of the continuous surface connection requirement.72 Specifically, the guidance provides that for an adjacent wetland to be jurisdictional,
First, the adjacent body of water must be a "water of the United States," which generally means traditional navigable waters, or a relatively permanent body of water connected to a traditional navigable water. Second, the wetland, assuming it satisfies the agencies' longstanding regulatory definition of "wetlands" ... must have a continuous surface connection to a requisite covered water making it difficult to determine where the water ends and wetland begins.73
"Additional waters." Under the 2023 WOTUS Rule, as amended by the 2023 Conforming Rule, intrastate lakes and ponds not identified in the other WOTUS categories must meet the relatively permanent standard and have a continuous surface connection to traditional navigable waters, the territorial seas, interstate waters, or jurisdictional tributaries.74 The agencies clarified in the 2023 WOTUS Rule preamble that this category is substantially narrower than the nonexclusive list of "other waters" that was included under the pre-2015 that was included under the pre-2015regulations.regulations.
jurisdiction from the pre-2015 regulations with the relatively permanent and jurisdiction from the pre-2015 regulations with the relatively permanent and
significant nexus standards.significant nexus standards.
long-standing exclusions for prior converted cropland and waste treatment systems that were long-standing exclusions for prior converted cropland and waste treatment systems that were
guidance rather than guidance rather than in the regulatory text.the regulatory text.
of the subsequent rules defining WOTUS (the Clean Water Rule and the Navigable Waters of the subsequent rules defining WOTUS (the Clean Water Rule and the Navigable Waters
Protection Rule), although the scope of some of these exclusions differed between rules.Protection Rule), although the scope of some of these exclusions differed between rules.
exclusions includeexclusions include
irrigation, settling basins, or rice growing;irrigation, settling basins, or rice growing;
primarily aesthetic reasons;primarily aesthetic reasons;
unless and until the construction is abandoned and the resulting body of water unless and until the construction is abandoned and the resulting body of water
meets the definition of WOTUS; andmeets the definition of WOTUS; and
pre-2015 regulatory exclusion, but also made certain changes to the regulatory textpre-2015 regulatory exclusion, but also made certain changes to the regulatory text, in what the in what the
agencies described as an effort to improve clarity and consistency with the implementation by the agencies described as an effort to improve clarity and consistency with the implementation by the
U.S. Department of Agriculture (USDA) of the Food Security Act of 1985, as amended.U.S. Department of Agriculture (USDA) of the Food Security Act of 1985, as amended.
Food Security Act includes a provision (the Food Security Act includes a provision (the
make determinations about whether wetland areas qualify as prior converted cropland.make determinations about whether wetland areas qualify as prior converted cropland.
83 The regulatory text in the 2023 WOTUS Rule regulatory text in the 2023 WOTUS Rule
USDA is excluded. The regulatory text also USDA is excluded. The regulatory text also
change of use, meaning the area is no longer available for the production of agricultural change of use, meaning the area is no longer available for the production of agricultural
commodities.commodities.
exception for prior converted cropland.exception for prior converted cropland.
the pre-2015 regulations, including the definitions for the pre-2015 regulations, including the definitions for
determining whether a water determining whether a water
The 2023 Conforming Rule deleted the definition for significantly affect, and it revised the definition of adjacent, as noted above, to mean "having a continuous surface connection."89 The 2023 Conforming Rule made no changes to the remaining four definitions.90
Which Rule Is in Effect Now? The 2023 WOTUS Rule went into effect on March 20, 2023, and the 2023 Conforming Rule went into effect on September 8, 2023.91in effect in some states, however. Two federal district courts in effect in some states, however. Two federal district courts
implementation of the 2023 WOTUS Rule in implementation of the 2023 WOTUS Rule in
stated that they would interpret WOTUS stated that they would interpret WOTUS
Figure 1. Status of the Waters of the United States (WOTUS) Regulatory Regime in Effect as of June 23, 2025
Source: CRS.
2023 WOTUS Rule.2023 WOTUS Rule.
that that
jurisdiction to more wetlands than jurisdiction to more wetlands than
Following the CourtFollowing the Court
potentially covered waters. In particular, the transition to the 2023 WOTUS Rule potentially covered waters. In particular, the transition to the 2023 WOTUS Rule and the 2023 Conforming Rule does not does not
necessarily invalidate approved jurisdictional determinations (AJDs), which the Corps issues to necessarily invalidate approved jurisdictional determinations (AJDs), which the Corps issues to
identify whether a particular parcel of land contains WOTUS, and which may be used in the identify whether a particular parcel of land contains WOTUS, and which may be used in the
CWA permitting process.CWA permitting process.
Navigable Waters Protection Rule or pre-2015 regulatory framework were in effect will not be Navigable Waters Protection Rule or pre-2015 regulatory framework were in effect will not be
reopened before their expiration date unless they satisfy specific criteria for revisionreopened before their expiration date unless they satisfy specific criteria for revision
and regulatory framework that was in effect at the time the violations occurred, even if the rule and regulatory framework that was in effect at the time the violations occurred, even if the rule
has since changed.has since changed.
in Court?
Five pending lawsuits challenge the 2023 WOTUS RuleFive pending lawsuits challenge the 2023 WOTUS Rule
the merits, preliminary orders have limited the implementation of the 2023 WOTUS Rule for the merits, preliminary orders have limited the implementation of the 2023 WOTUS Rule for
some statessome states
District Court for the Southern District of Texas.District Court for the Southern District of Texas.
the the
; violates the major questions violates the major questions
determine the scope of their own jurisdictiondetermine the scope of their own jurisdiction
process by failing to provide adequate notice of what conduct is prohibited under the statute.process by failing to provide adequate notice of what conduct is prohibited under the statute.
102 In the second suit, a coalition of agricultural and industry groups argues that the rule is unsupported the second suit, a coalition of agricultural and industry groups argues that the rule is unsupported
by law and scientific and economic evidence; violates the Commerce Clause, the Due Process by law and scientific and economic evidence; violates the Commerce Clause, the Due Process
Clause of the Fifth Amendment, the major questions doctrine, and the nondelegation doctrine;Clause of the Fifth Amendment, the major questions doctrine, and the nondelegation doctrine;
103 exceeds the Corpsexceeds the Corps
flexibility analysis.flexibility analysis.
Corps and EPA.Corps and EPA.
Third, a group of 24 states Third, a group of 24 states
the District of North Dakota.the District of North Dakota.
plaintiffs, the state plaintiffs allege that the rule violates the APAplaintiffs, the state plaintiffs allege that the rule violates the APA, because the final rule is not a because the final rule is not a
the Tenth Amendment by asserting federal jurisdiction over intrastate waters and lands that are the Tenth Amendment by asserting federal jurisdiction over intrastate waters and lands that are
ordinarily regulated by the states.ordinarily regulated by the states.
although the Corps and EPA have appealed the district courtalthough the Corps and EPA have appealed the district court
to intervene.to intervene.
Fourth, the Commonwealth of Kentucky Fourth, the Commonwealth of Kentucky
District Court for the Eastern District of Kentucky, raising similar allegations to those made by District Court for the Eastern District of Kentucky, raising similar allegations to those made by
Texas and the other state plaintiffs.Texas and the other state plaintiffs.
coalition of industry associations, was consolidated with the Commonwealth of Kentuckycoalition of industry associations, was consolidated with the Commonwealth of Kentucky
's lawsuit.lawsuit.
WOTUS Rule while the litigation is pending.WOTUS Rule while the litigation is pending.
issued preliminary injunctions: The Texas district court granted Texas and Idahoissued preliminary injunctions: The Texas district court granted Texas and Idaho
North Dakota district court granted the state plaintiffsNorth Dakota district court granted the state plaintiffs
extended the significant nexus standard beyond the breadth intended by Justice Kennedy in extended the significant nexus standard beyond the breadth intended by Justice Kennedy in
Rapanos and identified potential constitutional problems with the rule and identified potential constitutional problems with the rule
waters.waters.
however, holding that the industry associations had not demonstrated that they were entitled to however, holding that the industry associations had not demonstrated that they were entitled to
injunctive relief beyond what was granted to the states.injunctive relief beyond what was granted to the states.
for preliminary injunction, the North Dakota court agreed with the Texas courtfor preliminary injunction, the North Dakota court agreed with the Texas court
expressed concerns about the 2023 Ruleexpressed concerns about the 2023 Rule
indicated that the agenciesindicated that the agencies
arbitrary and capricious, and in conflict with various constitutional limitations.arbitrary and capricious, and in conflict with various constitutional limitations.
denied both preliminary denied both preliminary
federal cause of actionfederal cause of action
to support their claims of standing and ripeness.to support their claims of standing and ripeness.
Both Kentucky and the industry plaintiffs appealed those rulings to the U.S. Court of Appeals for the Sixth Circuit and sought a stay of the district court's decision pending appeal. In May 2023, the Sixth Circuit granted an injunction pending appeal, holding that the plaintiffs' general allegations of injury were likely sufficient at this stage of litigation.118 On July 29, 2024, the Sixth Circuit vacated the district court's ruling.119 The Sixth Circuit ruled that the district court had improperly dismissed the plaintiffs' complaints and remanded the matter to the district court with instructions that the plaintiffs file notice of their intent to file a new suit, amend their complaint, "or dispense with this litigation altogether" in light of the Corps and EPA's issuance of the 2023 Conforming Rule.120
Following the issuance of the 2023 Conforming Rule, plaintiffs in the pending cases have amended their complaints to argue that the 2023 WOTUS Rule as amended remains unlawful.121 The plaintiffs argue, among other things, that the relatively permanent standard as stated in the amended rule is vague and overly broad and that the agencies failed to adhere to notice-and-comment requirements in issuing the 2023 Conforming Rule.122
As a result of the preliminary injunctions, the pre-2015 regulations, consistent with Sackett, are in effect in 26 states. Further proceedings in any of the pending lawsuits could increase or decrease the number of states in which the 2023 WOTUS Rule and the 2023 Conforming Rule are in effect.123 Further proceedings within the context of the pending lawsuits could also address whether the 2023 Conforming Rule adequately amends the 2023 WOTUS Rule to conform to the Supreme Court's ruling in Sackett. It is also possible that no court will reach the merits of the plaintiffs' challenges to the 2023 WOTUS Rule as amended. After the change in Administration in 2025, the Corps and EPA asked the courts to stay each case to allow the agencies time to brief new leadership about the issues presented in the case; in the Kentucky litigation, the parties also sought to extend the stay following the issuance of the 2025 Continuous Surface Connection Guidance to allow the agencies to conduct listening sessions, receive public comments, and take further action as appropriate.124 All three district courts have granted stays, pausing the litigation pending further action by the parties or the courts.125 How DidJurisdiction?
On May 25, 2023, the Supreme Court decided On May 25, 2023, the Supreme Court decided Sackett v. EPA, a case with significant implications , a case with significant implications
for the scope of federal jurisdiction under the CWA.for the scope of federal jurisdiction under the CWA.
a compliance order and asked the Court to revisit a compliance order and asked the Court to revisit Rapanos and adopt Justice Scalia and adopt Justice Scalia
for determining whether certain adjacent wetlands are WOTUS. Applying the significant nexus for determining whether certain adjacent wetlands are WOTUS. Applying the significant nexus
test articulated by Justice Kennedy in test articulated by Justice Kennedy in Rapanos, the U.S. Court of Appeals for the Ninth Circuit , the U.S. Court of Appeals for the Ninth Circuit
upheld EPAupheld EPA
federal jurisdiction under the CWA and relevant regulations.federal jurisdiction under the CWA and relevant regulations.
agreed that the lower court applied the wrong standard for identifying WOTUS, the Court was agreed that the lower court applied the wrong standard for identifying WOTUS, the Court was
split 5-4 on the appropriate test. In an opinion authored by Justice Alito, the majority formally split 5-4 on the appropriate test. In an opinion authored by Justice Alito, the majority formally
adopted the approach taken by the adopted the approach taken by the Rapanos plurality. The majority held that plurality. The majority held that
CWA are limited to CWA are limited to
forming geographic[al] features that are described in ordinary parlance as streams, oceans, rivers, forming geographic[al] features that are described in ordinary parlance as streams, oceans, rivers,
and lakes.and lakes.
body of water that itself constitutes body of water that itself constitutes
the majority concluded that WOTUS includes the majority concluded that WOTUS includes
indistinguishable from waters of the United States, such that it is difficult to determine where the indistinguishable from waters of the United States, such that it is difficult to determine where the
water ends and the wetland begins. That occurs when wetlands have a continuous surface water ends and the wetland begins. That occurs when wetlands have a continuous surface
connection to bodies that are waters of the United States in their own right, so that there is no connection to bodies that are waters of the United States in their own right, so that there is no
waters.waters.
significant nexus test.significant nexus test.
if it wishes to significantly alter the balance between federal and state power and the power of the if it wishes to significantly alter the balance between federal and state power and the power of the
Government over private propertyGovernment over private property
to serious vagueness concerns in light of the CWAto serious vagueness concerns in light of the CWA
majority, the significant nexus test thus amounted to a majority, the significant nexus test thus amounted to a
notice to landowners of their obligations under the CWA.notice to landowners of their obligations under the CWA.
standing regulatory implementation and standing regulatory implementation and
Rapanos. While the precise extent of the change will . While the precise extent of the change will continue to depend on how the Corps and EPA depend on how the Corps and EPA
implement various aspects of the decisionimplement various aspects of the decision (including through guidance or a new rule), the majority, the majority
from covered waters by natural or artificial barriers means that fewer wetlands will be covered from covered waters by natural or artificial barriers means that fewer wetlands will be covered
than under any regulatory framework developed by the Corps or EPA since the 1970s.than under any regulatory framework developed by the Corps or EPA since the 1970s.
136 Additionally, the majorityAdditionally, the majority
narrowing the scope of waters as compared to the 2023 WOTUS Rule, the 2015 Clean Water narrowing the scope of waters as compared to the 2023 WOTUS Rule, the 2015 Clean Water
Rule, and the pre-2015 regulations and guidance.Rule, and the pre-2015 regulations and guidance.
Sackett, so the Court, so the Court
Rule. The majority opinion nevertheless Rule. The majority opinion nevertheless
The Supreme Court's ruling could affect—and, in some cases, already has affected—regulation of waters at the state level. The CWA expressly reserves to states the right to issue more stringent regulations, and states may choose to cover more waters in their own programs.137 Some states regulate waters within their borders beyond the scope of federal jurisdiction and have indicated that they plan to continue or expand such protections following Sackett; in some cases, states have already expanded protections.138 Other states have enacted laws barring environmental state agencies from promulgating regulations beyond what is federally required.139 A narrowed definition of WOTUS at the federal level could thus result in greater state-level divergence in the scope of covered waters.
What Actions Has the Second Trump Administration Taken to Define WOTUS?On March 12, 2025, the second Trump Administration announced its intent to revise the definition of WOTUS again through new rulemaking.140 In an EPA press release, the Administration promised to ensure a revised definition that "follows the law, reduces red-tape, cuts overall permitting costs, and lowers the cost of doing business in communities across the country while protecting the nation's navigable waters from pollution."141 EPA also committed to focus its regulatory revision on "clarity, simplicity and improvements that will stand the test of time."142
The same day, the Corps and EPA issued new guidance to field staff to help implement Sackett.143 The Administration asserted that the preamble to the 2023 Conforming Rule, and the agencies' case-specific policy memoranda issued after Sackett under the Biden Administration, did not provide clear or transparent direction for the public or the agencies on the meaning of the continuous surface connection requirement.144 The guidance, a joint memorandum to field staff, focused on implementation of the meaning of the continuous surface connection requirement for determining which wetlands are considered jurisdictional adjacent wetlands.
The guidance reiterates the two-part test provided in the Sackett ruling for determining CWA jurisdiction over adjacent wetlands: (1) the adjacent body of water must be a WOTUS, "which generally means traditional navigable waters or a relatively permanent body of water connected to a traditional navigable water"; and (2) the wetland "must have a continuous surface connection to a requisite covered water making it difficult to determine where the water ends and the wetland begins."145 The guidance also clarifies that adjacent wetlands are WOTUS only if they directly abut certain jurisdictional waters and are not separated from such waters by uplands, a berm, a dike, or a similar feature.146
Additionally, the agencies rescinded prior guidance and training materials issued under the Biden Administration that asserted that a wetland also has a continuous surface connection to a jurisdictional water if it is connected to that water through a "discrete feature" (e.g., a nonjurisdictional ditch, swale, pipe, or culvert). Per the new guidance, a wetland that has a continuous surface connection to a jurisdictional water through a "discrete feature" but does not abut the covered water is not jurisdictional.147
The Corps and EPA also announced a Federal Register notice publicizing a series of six listening sessions and a 30-day recommendations docket to solicit feedback on key aspects of the definition of WOTUS. The Corps and EPA published the Federal Register notice on March 24, 2025.148 It announced listening sessions for April and May 2025, as well as the availability of the recommendations docket, opened until April 23, 2025, to accept written recommendations from the public.149 The agencies organized the six listening sessions by stakeholder groups—states, tribes, industry and agricultural stakeholders, environmental and conservation stakeholders, local governments, and the public.150
How Have Adjacent Wetlands Been Addressed in Each of theThe Corps and EPA have long included adjacent wetlands as their own category in the regulations The Corps and EPA have long included adjacent wetlands as their own category in the regulations
they have promulgated to define WOTUS. While some rules included a more expansive they have promulgated to define WOTUS. While some rules included a more expansive
definition and others narrower definitions of definition and others narrower definitions of adjacent wetlands, all of the rules have recognized , all of the rules have recognized
adjacent wetlands as WOTUS. These rules have provided that wetlands separated from other adjacent wetlands as WOTUS. These rules have provided that wetlands separated from other
WOTUS by WOTUS by
adjacent wetlands.adjacent wetlands.
discussed, diverges from long-standing regulations and practice by excluding wetlands separated discussed, diverges from long-standing regulations and practice by excluding wetlands separated
2008 Rapanos Guidance, the 2015 Clean Water Rule, the 2020 Navigable Waters Protection Rule, the 2023 WOTUS Rule, 2015 Clean Water Rule, the 2020 Navigable Waters Protection Rule, the 2023 WOTUS Rule,
the Sackett v. EPA decision, the 2023 Conforming Rule, and the 2025 Continuous Surface Connection Guidance. Table 2. Scope of Adjacent Wetlands Under Waters of the United States (WOTUS) Regulations
Source
Is Defined Pre-2015 Regulationsa
The regulations
define adjacent as "bordering, contiguous, or neighboring"b; and specify that "wetlandsbarriers, natural river berms, beach dunes, and the likebarriers, natural river berms, beach dunes, and the like" are are
- Wetlands that were adjacent to traditional navigable waters and wetlands that abutted relatively permanent tributaries (described as those that flow year-round or have continuous flow at least seasonally) of such waters were categorically WOTUS
- Wetlands adjacent to tributaries that were not relatively permanent, and wetlands adjacent to but not directly abutting a relatively permanent tributary, were subject to case-by-case significant nexus analysis to determine jurisdiction
The guidance provided that adjacency was established by satisfying one of three criteria:
(1) the wetland had an unbroken surface or shallow subsurface connection to jurisdictional waters (which may be intermittent);
(2) the wetland was physically separated- Adjacent waters, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters, rather than just adjacent wetlands
- Included waters adjacent to traditional navigable waters; interstate waters, including interstate wetlands; jurisdictional impoundments; and jurisdictional tributaries
The rule
defined adjacent to mean "bordering, contiguous, or neighboring" a traditional navigable water, an interstate water (navigable water, navigable water, an interstate water interstate water (including an interstate wetlandincluding an interstate wetland), a
impoundment, or a jurisdictional tributaryimpoundment, or a jurisdictional tributary
include all waters that connect segments of one of the aforementioned waters or include all waters that connect segments of one of the aforementioned waters or
that were located at the head of one of these waters and were located at the head of one of these waters and
traditional navigable water, traditional navigable water, an interstate water interstate water (including an interstate wetlandincluding an interstate wetland), a
jurisdictional impoundment, or a jurisdictional tributary; orjurisdictional impoundment, or a jurisdictional tributary; or if the water was located within the 100-year within the 100-year
floodplain of one of the aforementioned waters and not more than 1,500 feet from floodplain of one of the aforementioned waters and not more than 1,500 feet from
the ordinary high water mark of such waterthe ordinary high water mark of such water
Waters Protection Rulee
(2) were inundated by flooding from one of the aforementioned waters in a typical year;(2) were inundated by flooding from one of the aforementioned waters in a typical year;
(3) were physically separated from one of the aforementioned waters only by a natural (3) were physically separated from one of the aforementioned waters only by a natural
berm, bank, dune, or similar natural feature; orberm, bank, dune, or similar natural feature; or
(4) were physically separated from one of the aforementioned waters only by an artificial (4) were physically separated from one of the aforementioned waters only by an artificial
dike, barrier, or similar artificial structuredike, barrier, or similar artificial structure, so long as that structure allowed for a direct so long as that structure allowed for a direct
hydrological surface connection to the water in a typical yearhydrological surface connection to the water in a typical year
connection through or over that structure in a typical yearconnection through or over that structure in a typical year
Wetlands that are adjacent to
(1) traditional navigable waters, interstate waters, or traditional navigable waters, interstate waters, orare relatively permanent, standing, or are relatively permanent, standing, or
continuously flowing bodies of watercontinuously flowing bodies of water and with a continuous surface connection to those waters; or (3)
similarly situated waters meet the significant similarly situated waters meet the significant
nexus standardnexus standard
The rule
- defines adjacent as "bordering, contiguous, or neighboring"; and
- specifies that wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are "adjacent wetlands."
Adjacent wetlands that are part of (i.e., indistinguishable from) waters of the United States
The decision
Specifies that adjacent wetlands includewetland begins. That occurs when wetlands have a continuous surface connection to wetland begins. That occurs when wetlands have a continuous surface connection to
bodies that are waters of the United States in their own right, so that there is no clear bodies that are waters of the United States in their own right, so that there is no clear
demarcation between waters and wetlands.demarcation between waters and wetlands.
waters, such as those separated by a barrier.waters, such as those separated by a barrier.
Wetlands adjacent to
(1) traditional navigable waters, interstate waters, or the territorial seas; or
(2) jurisdictional impoundments or tributaries that are relatively permanent, standing, or continuously flowing bodies of water and with a continuous surface connection to those waters
The rule defines adjacent as "having a continuous surface connection."
Adjacent wetlands that have a continuous surface connection because they directly abut certain jurisdictional waters and are not separated from the adjacent WOTUS by uplands, a berm, a dike, or a similar feature
The guidance provides a two-part test for determining jurisdiction over adjacent wetlands:
- the adjacent body of water must be a WOTUS, which generally means traditional navigable waters or a relatively permanent body of water connected to a traditional navigable water; and
- the wetland (assuming it meets the long-standing regulatory definition) must have a continuous surface connection to a requisite covered water, making it difficult to determine where the water ends and the wetland begins.
Source: CRS analysis of WOTUS regulations, WOTUS guidance, and the Sackett v. EPA decision.
Notes:
a. Army Corps of Engineers (Corps), "Final Rule for Regulatory Programs of the Corps of Engineers," 51 51 Federal Register 41206, 41206,Rule).Rule).
f. f.
the Definition of WOTUS?
Considering the numerous court rulings, ongoing legal challenges, and successive Considering the numerous court rulings, ongoing legal challenges, and successive
to more specifically define the term through amendments to the CWA. Others argue that the to more specifically define the term through amendments to the CWA. Others argue that the
Corps and EPA, with their specific knowledge and expertise, are in the best position to determine Corps and EPA, with their specific knowledge and expertise, are in the best position to determine
the scope of the term. The the scope of the term. The Sackett v. EPA decision narrows the scope of WOTUS with regard to decision narrows the scope of WOTUS with regard to
how the agencies may interpret the term moving forwardhow the agencies may interpret the term moving forward, but the decision
amending the CWA to define the term with more clarity or specificity.amending the CWA to define the term with more clarity or specificity.
Resources and Environment held a hearing regarding the 2023 WOTUS Rule.Resources and Environment held a hearing regarding the 2023 WOTUS Rule.
committeescommittees
hearing held by the House Committee on Agriculture.hearing held by the House Committee on Agriculture.
joint resolutions of disapproval of the 2023 WOTUS Rule under the Congressional Review Act joint resolutions of disapproval of the 2023 WOTUS Rule under the Congressional Review Act
(CRA).(CRA).156 In addition, some Members In addition, some Members
Waters Protection RuleWaters Protection Rule
Protection Rule, Protection Rule,
WOTUS regulations on the agricultural sectorWOTUS regulations on the agricultural sector
Below are summaries of legislation related to WOTUS in the 118th Congress.
H.J.Res. 27 and S.J.Res. 7H.J.Res. 27 and S.J.Res. 7or cosponsored by 170 Members of the House of Representatives and 49 or cosponsored by 170 Members of the House of Representatives and 49
Senators. In March 2023, both the House and the Senate passed the joint Senators. In March 2023, both the House and the Senate passed the joint
resolution of disapproval for the 2023 WOTUS Rule, which President Biden resolution of disapproval for the 2023 WOTUS Rule, which President Biden
subsequently vetoed.subsequently vetoed.
to meet the two-thirds majority needed to pass.to meet the two-thirds majority needed to pass.
navigable waters. The language, as introduced, would . The language, as introduced, would
subject to CWA jurisdiction in comparison to any of the WOTUS regulatory subject to CWA jurisdiction in comparison to any of the WOTUS regulatory
regimes (pre-2015, Clean Water Rule, Navigable Waters Protection Rule, and 2023 WOTUS Rule). It would also have amended the CWA to make changes to the Corps process for making jurisdictional determinations.
all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters (and their tributaries), including lakes, rivers, streams (including intermittent and ephemeral streams), wetlands, and all impoundments of the foregoing, to the fullest extent that these waters are subject to the legislative power of Congress under the Constitution.
- H.R. 7023, the Creating Confidence in Clean Water Permitting Act, would have required the Corps and EPA to issue guidance on the implementation of the 2023 Conforming Rule. It also would have required the agencies to solicit and respond to public comment on the guidance prior to issuance.
- S. 782, the FREE American Energy Act, would have enacted the Navigable Waters Protection Rule into law.
- S. 879, the Energy Freedom Act, would have reinstated the Navigable Waters Protection Rule and provided that each of its provisions applied until the effective date of a subsequent final rule. It would also have prohibited the Corps and EPA from issuing a new rule to redefine WOTUS for 15 years from the date of enactment.
- S. 1023, the Farmer-Informed WOTUS Act of 2023, would have established an advisory committee representative of the United States farming and ranching sectors to inform Congress of the impact of WOTUS regulations on U.S. agriculture.
- S. 1449, the RESTART Act, would have amended the CWA to change the definition of navigable waters. The language, as introduced, closely aligned with the definition published in the Navigable Waters Protection Rule.
- S. 3366, the Farmers Freedom Act of 2023, would have required the Corps and EPA to ensure that any definition of WOTUS would exclude prior converted cropland and would have the meaning given the term in the Navigable Waters Protection Rule.
Moving forward, Congress has several options to take action regarding the definition of WOTUS, in addition to the option of maintaining the status quo. Congress may oversee the Corps and EPA's efforts to implement existing regulations, including the 2023 WOTUS Rule, as amended by the 2023 Conforming Rule, and the pre-2015 regulations implemented consistent with Sackett. This may include oversight of guidance the Corps and EPA have issued or any new guidance the agencies opt to issue. Given the second Trump Administration's announcement to issue revised regulations, Congress may also oversee the Corps and EPA's efforts to promulgate such revised regulations, as well as their efforts to implement the 2025 Continuous Surface Connection Guidance.
Some in Congress may consider proposing legislation to either provide a definition of WOTUS or provide more specific instruction to the agencies and regulated parties as to their interpretation of the CWA, particularly given the challenges that each of the past three Administrations has faced in establishing lasting regulations that could withstand legal challenges. Legislative proposals could include providing a specific definition of WOTUS, specific exemptions from WOTUS, and/or definitions of certain key terms that have been included in past and current regulations. Alternatively, legislative proposals could clarify congressional intent for specific implementation issues (e.g., what kinds of characteristics, such as flow duration, tributaries should have to be jurisdictional).The Supreme Court's increasing insistence on clear congressional intent to delegate regulatory authority, and its elimination of the Chevron framework, which required courts to defer to reasonable agency interpretations of ambiguous statutes,159 suggest that any regulatory actions taken within the current statutory framework would be subject to close judicial scrutiny. Amending the CWA to provide more specificity would allow Congress to choose the policy it prefers rather than leaving the courts to interpret ambiguities in the statute.
Footnotes
33 U.S.C. §§ 1251 et seq.
33 U.S.C. § 1362(7).
Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA), "Clean Water Rule: Definition of 'Waters of the United States'; Final Rule," 80 Federal Register 37054, June 29, 2015 (hereinafter 2015 Clean Water Rule); Corps and EPA, "The Navigable Waters Protection Rule: Definition of 'Waters of the United States,'" 85 Federal Register 22250, April 21, 2020 (hereinafter Navigable Waters Protection Rule).
Pascua Yaqui Tribe v. EPA, 557 F. Supp. 3d 949 (D. Ariz. 2021).
Corps and EPA, "Revised Definition of 'Waters of the United States,'" 88 Federal Register 3004, January 18, 2023 (hereinafter 2023 WOTUS Rule). The final rule was published on January 18, 2023. The agencies released a prepublication version of the rule on December 30, 2022.
2023 WOTUS Rule, p. 3019. See also Corps and EPA, Final Rule: Revised Definition of "Waters of the United States" Fact Sheet, December 2022, https://www.epa.gov/system/files/documents/2022-12/Public%20Fact%20Sheet.pdf (hereinafter 2022 WOTUS Fact Sheet).
See, for example, David LaRoss, "Touting 'Durable' Approach, EPA Adopts Dual Tests in Revised WOTUS Rule," InsideEPA.com, December 30, 2022.
Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex.); West Virginia v. EPA, No. 3:23-cv-00032 (D.N.D.); Kentucky v. EPA, No. 3:23-cv-00007 (E.D. Ky.).
598 U.S. 651 (2023).
See id. at 679.
Corps and EPA, "Revised Definition of 'Waters of the United States'; Conforming," 88 Federal Register 61964, September 8, 2023 (hereinafter 2023 Conforming Rule).
EPA, "Definition of 'Waters of the United States': Rule Status and Litigation Update," https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update.
Corps and EPA, Memorandum to the Field Between the U.S. Department of the Army, U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency Concerning the Proper Implementation of "Continuous Surface Connection" Under the Definition of "Waters of the United States" Under the Clean Water Act, March 12, 2025, https://www.epa.gov/system/files/documents/2025-03/2025cscguidance.pdf (hereinafter 2025 Continuous Surface Connection Guidance).
Corps, "Final Rule for Regulatory Programs of the Corps of Engineers," 51 Federal Register 41206, November 13, 1986 (hereinafter 1986 Corps Rule); EPA, "Clean Water Act Section 404 Program Definitions and Permit Exemptions; Section 404 State Program Regulations," 53 Federal Register 20764, June 6, 1988 (hereinafter 1988 EPA Rule).
Corps and EPA, "Appendix A, Joint Memorandum," 68 Federal Register 1995, January 15, 2003; Benjamin H. Grumbles, Assistant Administrator for Water, EPA, and John Paul Woodley Jr., Assistant Secretary of the Army (Civil Works), Department of the Army, Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States, memorandum, December 2, 2008 (hereinafter 2008 Rapanos Guidance); 2025 Continuous Surface Connection Guidance.
547 U.S. 715 (2006).
Id. at 719, 757 (Roberts, C.J., concurring), 759 (Kennedy, J., concurring).
Id. at 739, 782 (Kennedy, J., concurring).
Id. at 739.
Id. at 742.
Id. at 782 (Kennedy, J., concurring).
2008 Rapanos Guidance; see also Rapanos, 547 U.S. at 810 (Stevens, J., dissenting).
2015 Clean Water Rule, p. 37056.
See EPA, "What the Clean Water Rule Does," EPA Web Archive, https://archive.epa.gov/epa/cleanwaterrule/what-clean-water-rule-does.html; and EPA, Persons and Organizations Requesting Clarification of "Waters of the United States" by Rulemaking, US EPA Archive Document, https://archive.epa.gov/epa/sites/production/files/2014-03/documents/wus_request_rulemaking.pdf.
2015 Clean Water Rule.
2015 Clean Water Rule, pp. 37057-37059, 37105-37106.
See, for example, Carolina Bolado, "Fla., Others Sue EPA, Corps over Clean Water Act Expansion," Law360, June 30, 2015; Center for Biological Diversity, "EPA and Army Corps Issue Weak Clean Water Rule," press release, May 27, 2015, https://www.biologicaldiversity.org/news/press_releases/2015/clean-water-rule_05-27-2015.html.
North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015); Georgia v. Pruitt, 326 F. Supp. 3d 1356 (S.D. Ga. 2018); Texas v. EPA, No. 3:15-cv-162, 2018 WL 4518230 (S.D. Tex. Sept. 12, 2018); Or. Cattlemen's Ass'n v. EPA, No. 19-00564 (D. Or. July 26, 2019).
Georgia v. Wheeler, 418 F. Supp. 3d 1336 (S.D. Ga. 2019); Texas v. EPA, 389 F. Supp. 3d 497 (S.D. Tex. 2019). In this context, to "remand" means to return the rule to the agencies to reconsider possible errors or defects in their action. A court order that remands a rule may or may not render the rule unenforceable during any further proceedings.
For example, EPA, "EPA, U.S. Army Repeal 2015 Rule Defining 'Waters of the United States' Ending Regulatory Patchwork," press release, September 12, 2019, https://www.epa.gov/newsreleases/epa-us-army-repeal-2015-rule-defining-waters-united-states-ending-regulatory-patchwork.
Corps and EPA, "Definition of 'Waters of the United States'—Recodification of Pre-Existing Rules," 84 Federal Register 56626, October 22, 2019.
Corps and EPA, "The Navigable Waters Protection Rule: Definition of 'Waters of the United States,'" 85 Federal Register 22250, April 21, 2020.
Executive Order 13990, "Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis," 86 Federal Register 7037-7043, January 20, 2021.
EPA, "EPA, Army Announce Intent to Revise Definition of WOTUS," press release, June 9, 2021, https://www.epa.gov/newsreleases/epa-army-announce-intent-revise-definition-wotus; see also, e.g., Motion for Remand Without Vacatur, Conservation Law Found. v. EPA, No. 1:20-cv-10820 (D. Mass. June 6, 2021), ECF No. 112.
Pascua Yaqui Tribe v. EPA, 557 F. Supp. 3d 949 (D. Ariz. 2021). One other court subsequently vacated the Navigable Waters Protection Rule, adopting similar reasoning to the Pascua Yaqui court. Memorandum Opinion and Order, Navajo Nation v. Regan, No. 2:20-cv-00602 (D.N.M. Sept. 27, 2021), ECF No. 43. In this context, to "vacate" the rule means to declare it invalid, as if the rule had never been in effect.
Pascua Yaqui, 557 F. Supp. 3d at 955.
See EPA, "Definition of 'Waters of the United States': Rule Status and Litigation Update," https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update.
2023 WOTUS Rule.
2023 WOTUS Rule, p. 3019; and 2022 WOTUS Fact Sheet.
Sackett v. EPA, 598 U.S. 651 (2023). For a more in-depth discussion of Sackett, see CRS Legal Sidebar LSB10981, Supreme Court Narrows Federal Jurisdiction Under Clean Water Act, by Kate R. Bowers.
Sackett, 598 U.S. at 678-79.
2023 Conforming Rule. The 2023 Conforming Rule does not rescind the 2023 WOTUS Rule, but rather amends the provisions of the rule that were invalid under the Supreme Court's interpretation of the CWA in Sackett.
2023 Conforming Rule. The Corps and EPA took the position that notice-and-comment procedures were not required because the sole purpose of the 2023 Conforming Rule was to amend the 2023 WOTUS Rule to conform to Sackett, and because the amendments did not involve the exercise of the agencies' discretion. The Corps and EPA also stated that good cause existed to make the rule immediately effective because the rule improved regulatory certainty and did not impose burdens on the regulated community. 2023 Conforming Rule, p. 61965.
2023 Conforming Rule. See also Corps and EPA, Fact Sheet for the Final Rule: Amendments to the Revised Definition of "Waters of the United States," August 2023, https://www.epa.gov/system/files/documents/2023-08/FINAL_WOTUSPublicFactSheet08292023.pdf (hereinafter 2023 Conforming Rule Fact Sheet).
2023 WOTUS Rule, p. 3068.
2023 WOTUS Rule, p. 3068.
2023 Conforming Rule, p. 61966.
1986 Corps Rule, p. 41250; 1988 EPA Rule, p. 20774.
EPA, "Pre-2015 Regulatory Regime," https://www.epa.gov/wotus/pre-2015-regulatory-regime.
Corps and EPA, Joint Coordination Memorandum to the Field Between the U.S. Department of the Army, U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA), September 27, 2023, p. 2, https://www.epa.gov/system/files/documents/2023-10/2023-joint-coordination-memo-pre-2015-regulatory-regime_508c.pdf (hereinafter Joint Coordination Memorandum to the Field, September 27, 2023).
2023 WOTUS Rule, pp. 3075-3076.
1986 Corps Rule, p. 41250; 1988 EPA Rule, p. 20774; 2023 WOTUS Rule, p. 3066; and 2022 WOTUS Fact Sheet, p. 2. Note that impoundments of (a)(5) waters may still be determined to be jurisdictional if they meet the requirements of another category of WOTUS.
2023 Conforming Rule, p. 61968.
2023 WOTUS Rule, pp. 3005-3006; and 2022 WOTUS Fact Sheet.
2023 WOTUS Rule, pp. 3005-3006; and 2022 WOTUS Fact Sheet.
Joint Coordination Memorandum to the Field, September 27, 2023, p. 2.
2023 WOTUS Rule, p. 3142; 2023 Conforming Rule, pp. 61966, 61968.
2023 WOTUS Rule, pp. 3079-3080.
1986 Corps Rule, p. 41250; 1988 EPA Rule, p. 20774.
2023 WOTUS Rule, pp. 3080-3081. Both the Clean Water Rule and the Navigable Waters Protection Rule included a definition of "tributary." In the preamble to the 2023 WOTUS Rule, the agencies concluded that a definition was not required because the agencies have decades of experience implementing the 1986 regulations, which also did not include a definition. Further, the agencies asserted that they "articulate[d] and explain[ed] the agencies' well-established interpretation and practices for identifying tributaries" in the preamble.
2023 WOTUS Rule, pp. 3080-3081. The rule's preamble clarifies that "a tributary for purposes of this rule includes rivers, streams, lakes, ponds, and impoundments, regardless of their flow regime, that flow directly or indirectly through another water or waters to a traditional navigable water, the territorial seas, or an interstate water." Note that the Navigable Waters Protection Rule's definition required that a tributary be perennial (i.e., flow year-round) or intermittent (i.e., flow continuously only during certain times of the year, such as seasonally) and excluded ephemeral streams (i.e., those that flow only in response to precipitation events). The Clean Water Rule's definition provided that a tributary could be perennial, intermittent, or ephemeral as long as other criteria in the definition were met.
2023 Conforming Rule, pp. 61965-61966, 61968.
Corps and EPA, "Updates for Tribes and States on Waters of the United States," presentation, November 15, 2023, https://www.epa.gov/system/files/documents/2023-11/wotus-overview_tribes-and-states_11-15-23_508.pdf, pp. 23-26.
2023 WOTUS Rule, p. 3084.
2023 WOTUS Rule, p. 3084.
2023 WOTUS Rule, p. 3142; 2023 Conforming Rule, pp. 61966, 61968.
2023 Conforming Rule, p. 61969.
1986 Corps Rule, pp. 41250-41251; 1988 EPA Rule, p. 20774.
EPA, "Current Implementation of Waters of the United States," section on "Guidance Documents and Memoranda Used to Implement the Current Definition of 'Waters of the United States,'" https://www.epa.gov/wotus/current-implementation-waters-united-states#Guidance.
2025 Continuous Surface Connection Guidance.
2025 Continuous Surface Connection Guidance, p. 5.
2023 WOTUS Rule, p. 3142; 2023 Conforming Rule, pp. 61966, 61968.
2023 WOTUS Rule, p. 3097.
2023 WOTUS Rule, p. 3097. The pre-2015 regulatory framework included as jurisdictional waters those waters "the use, degradation, or destruction of which could affect interstate or foreign commerce." 1986 Corps Rule, p. 41250; 1988 EPA Rule, p. 20774.
2023 Conforming Rule, pp. 61966, 61968.
2023 WOTUS Rule, pp. 3066-3067, 3142-3143.
2023 WOTUS Rule, pp. 3066-3067, 3142-3143.
2023 WOTUS Rule, p. 3103. See also 2015 Clean Water Rule, p. 37118; 2020 Navigable Waters Protection Rule, p. 22340. Note these exclusions were either explicitly listed, or were excluded under a broader exclusion category.
2023 WOTUS Rule, pp. 3105-3107. In 1993, the Corps and EPA codified into regulation the existing policy that prior converted cropland (PCC) is not WOTUS. See Corps and EPA, "Clean Water Act Regulatory Programs," 58 Federal Register 45008, August 25, 1993. In the rule's preamble, the agencies referenced the definition of PCC from USDA's 1988 National Food Security Act Manual, which defines PCC as wetlands that "were both manipulated (drained or otherwise physically altered to remove excess water from the land) and cropped before 23 December 1985, to the extent that they no longer exhibit important wetland values." For more information on the CWA PCC exclusion, see CRS In Focus IF11136, Prior Converted Cropland Under the Clean Water Act, by Laura Gatz and Megan Stubbs.
2023 WOTUS Rule, p. 3142.
2023 WOTUS Rule, pp. 3105-3107.
2023 WOTUS Rule, pp. 3067, 3143.
2023 WOTUS Rule, pp. 3067, 3143.
2023 Conforming Rule, pp. 61966, 61969. See also 2023 Conforming Rule Fact Sheet.
2023 Conforming Rule; 2023 Conforming Rule Fact Sheet.
2023 Conforming Rule, p. 61964.
Memorandum Opinion and Order Granting Preliminary Injunction, Texas v. EPA, No. 3:23-cv-17 (S.D. Tex. Mar. 19, 2023), ECF No. 60; Order Granting Plaintiffs' Motion for Preliminary Injunction, West Virginia v. EPA, No. 3:23-cv-00032 (D.N.D. Apr. 12, 2023), ECF No. 131. In addition to the district court preliminary injunctions, the U.S. Court of Appeals for the Sixth Circuit stayed the 2023 WOTUS Rule pending appeal as to Kentucky and several industry associations that were plaintiffs in that lawsuit, as well as to their members. Order, Kentucky v. EPA, No. 23-5343 (6th Cir. May 10, 2023), ECF No. 24. On September 23, 2024, after remanding the matter to the district court, the Sixth Circuit issued a mandate lifting the stay order, bringing the number of states subject to the pre-2015 regulations down from 27 to 26. Mandate, Kentucky v. EPA, No. 23-5343 (6th Cir. Sept. 23, 2024), ECF No. 57.
EPA, "Definition of 'Waters of the United States': Rule Status and Litigation Update," https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update.
EPA, "Definition of 'Waters of the United States': Rule Status and Litigation Update," https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update.
See infra, "How Did Sackett v. EPA Affect the Scope of CWA Jurisdiction?"
EPA, "Definition of 'Waters of the United States': Rule Status and Litigation Update," https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update.
See 33 C.F.R. § 331.2.
See EPA, "Current Implementation of Waters of the United States," https://www.epa.gov/wotus/current-implementation-waters-united-states; and U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 05-02 (June 14, 2005).
Prior rules defining WOTUS were the subject of numerous lawsuits filed by industry groups, environmental groups, and states. In 2018, the Supreme Court held that challenges to a rule defining WOTUS are typically governed by the APA and must be reviewed first in federal district court. Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617 (2018). That holding limited the degree to which the agencies, under rules of court procedure, can seek a single nationwide decision about the validity of the 2023 WOTUS Rule.
Order, Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex. Feb. 13, 2023), ECF No. 27.
Under the major questions doctrine, an agency must provide clear congressional authorization in certain cases when it seeks to decide an issue of major national significance. For additional background on the major questions doctrine, see CRS In Focus IF12077, The Major Questions Doctrine, by Kate R. Bowers.
First Amended, Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex. Feb. 27, 2023), ECF No. 32.
The nondelegation doctrine is the separation-of-powers principle that limits Congress's ability to cede its legislative power to other branches of government or nongovernmental entities. For further discussion of the nondelegation doctrine, see Congressional Research Service, "ArtI.S1.5. Nondelegation Doctrine," Constitution Annotated, https://constitution.congress.gov/browse/article-1/?anchor=I_S1_5#I_S1_5.
First Amended Complaint, Am. Farm Bureau Fed'n v. EPA, No. 3:23-cv-00020 (S.D. Tex. Feb. 2, 2023), ECF No. 1.
Bayou City Waterkeeper Motion to Intervene, Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex. Feb. 9, 2023), ECF No. 20; Bayou City Waterkeeper Motion to Intervene, Am. Farm Bureau Fed'n v. EPA, No. 3:23-cv-00020 (S.D. Tex. Feb. 9, 2023), ECF No. 16; Order, Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex. Feb. 14, 2023), ECF No. 30.
Complaint, West Virginia v. EPA, No. 3:23-cv-00032 (D.N.D. Feb. 16, 2023), ECF No. 1.
Id.
Order and Federal Defendants' Appeal from the Magistrate Judge's Order Granting Industry's Motion to Intervene, West Virginia v. EPA (D.N.D. Mar. 22, 2023 and Apr. 5, 2023), ECF Nos. 110 and 129.
Complaint, Kentucky v. EPA, No. 3:23-cv-00007 (E.D. Ky. Feb. 22, 2023), ECF No. 1.
Complaint, Kentucky Chamber of Commerce v. EPA, No. 3:23-cv-00008 (E.D. Ky. Feb. 22, 2023); Order, Kentucky v. EPA, No. 3:23-cv-00007 (E.D. Ky. Feb. 28, 2023), ECF No. 16.
Motion for Preliminary Injunction, Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex. Feb. 7, 2023), ECF No. 13; Motion for Preliminary Injunction, Am. Farm Bureau Fed'n v. EPA, No. 3:23-cv-00020 (S.D. Tex. Feb. 7, 2023), ECF No. 15; Plaintiff States' Motion for Preliminary Injunction, West Virginia v. EPA, No. 3:23-cv-00032 (D.N.D. Feb. 21, 2023), ECF No. 44; Motions for Preliminary Injunction, Kentucky v. EPA, No. 3:23-cv-00007 (E.D. Ky. Feb. 23, 2023 and Feb. 28, 2023), ECF Nos. 10 and 17.
Memorandum Opinion and Order Granting Preliminary Injunction, Texas v. EPA, No. 3:23-cv-00017 (E.D. Tex. Mar. 19, 2023), ECF No. 60; Order Granting Plaintiffs' Motion for Preliminary Injunction, West Virginia v. EPA (D.N.D. Apr. 12, 2023), ECF No. 131. The North Dakota industry plaintiffs withdrew their motion for preliminary injunction after the district court granted the state plaintiffs' motion. Intervenor-Plaintiffs' Notice of Withdrawal of Their Motion for Preliminary Injunction, West Virginia v. EPA, No. 3:23-cv-00032 (D.N.D. Apr. 18, 2023), ECF No. 135.
Memorandum Opinion and Order Granting Preliminary Injunction at 19-26, Texas v. EPA.
Id. at 34.
Order Granting Plaintiffs' Motion for Preliminary Injunction at 17-29, West Virginia v. EPA.
Opinion and Order, Kentucky v. EPA, No. 3:23-cv-00007 (E.D. Ky. Mar. 31, 2023), ECF No. 51.
Id. at 1.
Order, Kentucky v. EPA, No. 23-5343 (6th Cir. May 10, 2023), ECF No. 24.
Kentucky v. EPA, No. 23-5343, 2024 WL 3569525 (6th Cir. Jul. 29, 2024).
Id. at *2.
Second Amended Complaint and Petition for Review, Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex. Nov. 13, 2023), ECF No. 90; Second Amended Complaint for Declaratory Relief, Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex. Nov. 13, 2023), ECF No. 91; Amended Complaint, West Virginia v. EPA, No. 3:23-cv-00032 (D.N.D. Nov. 13, 2023), ECF No. 176; Intervenor Plaintiffs' Amended Complaint for Declaratory Relief, West Virginia v. EPA, No. 3:23-cv-00032 (D.N.D. Nov. 13, 2023), ECF No. 175; First Amended Complaint, Kentucky v. EPA, No. 3:23-cv-00007 (E.D. Ky. Nov. 8, 2024), ECF No. 78. Following the Sixth Circuit's ruling, the industry plaintiffs in the Kentucky litigation voluntarily dismissed their suit. Private-Sector Plaintiffs' Notice of Voluntary Dismissal Without Prejudice, Kentucky v. EPA, No. 3:23-00007 (E.D. Ky. Oct. 4, 2024), ECF No. 73.
Consistent with the statute of limitations for APA claims, potential litigants would generally be required to file suit within six years after their claims accrue. 28 U.S.C. § 2401(a). While additional lawsuits are thus possible, early lawsuits are the most likely to be closely watched, as they present the courts' first opportunities to issue rulings that may be binding in later cases.
Defendants' Motion to Stay the Case or, in the Alternative, to Extend the Supplemental Briefing Deadline by 14 Days, Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex. Feb. 3, 2025), ECF No. 135; Defendants' Motion to Stay Case, West Virginia v. EPA, No. 3:23-cv-00032 (D.N.D. Feb. 4, 2025), ECF No. 250; Defendants' Consent Motion to Stay Case, Kentucky v. EPA, No. 3:23-cv-00007 (E.D. Ky. Feb. 3, 2025), ECF No. 89; Joint Status Report, Kentucky v. EPA, No. 3:23-cv-00007 (E.D. Ky. Mar. 28, 2025), ECF No. 92.
Order, Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex. Feb. 4, 2025), ECF No. 136; Order Granting Defendants' Motion for Stay, West Virginia v. EPA, No. 3:23-cv-00032 (D.N.D. Feb. 18, 2025), ECF No. 256; Order, Kentucky v. EPA, No. 3:23-cv-00007 (E.D. Ky. Feb. 10, 2025), ECF No. 90; Order, Kentucky v. EPA, No. 3:23-cv-00007 (E.D. Ky. Apr. 3, 2025).
Sackett v. EPA, 598 U.S. 651 (2023). For a more in-depth discussion of Sackett, see CRS Legal Sidebar LSB10981, Supreme Court Narrows Federal Jurisdiction Under Clean Water Act, by Kate R. Bowers.
Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021).
Sackett v. EPA, 598 U.S. at 671.
Id. at 676.
Id.
Id. at 678.
Id. at 679.
Id.
Id. at 680.
Id. at 681.
Id. at 720 (Kavanaugh, J., concurring in the judgment).
33 U.S.C. § 1370.
E.g., California State Water Resources Control Board, "State Water Board Statement: U.S. Supreme Court Decision Decreases Federal Wetlands Protection," press release, May 25, 2023, https://waterboards.ca.gov/press_room/press_releases/2023.html. On June 4, 2025, the California Senate passed a bill (SB 601) to protect certain state waterways following Sackett, but the bill had not been enacted into law at the time of publication of this report. In May 2024, Colorado became the first state to enact legislation restoring protections to certain wetlands and streams following the Sackett decision (Colorado House Bill 24-1379).
See Corps and EPA, Resource and Programmatic Assessment for the Navigable Waters Protection Rule: Definition of "Waters of the United States," January 23, 2020, pp. 45-46, https://www.epa.gov/sites/production/files/2020-01/documents/rpa_-_nwpr_.pdf; Environmental Law Institute, State Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water Act, May 2013, p. 1, https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf.
EPA, "Administrator Zeldin Announces EPA Will Revise Waters of the United States Rule," press release, March 12, 2025, https://www.epa.gov/newsreleases/administrator-zeldin-announces-epa-will-revise-waters-united-states-rule (hereinafter March 2025 EPA Press Release).
March 2025 EPA Press Release.
March 2025 EPA Press Release.
2025 Continuous Surface Connection Guidance.
2025 Continuous Surface Connection Guidance, p. 1.
2025 Continuous Surface Connection Guidance, p. 5.
2025 Continuous Surface Connection Guidance, p. 5.
2025 Continuous Surface Connection Guidance, p. 5.
Corps and EPA, "WOTUS Notice: The Final Response to SCOTUS; Establishment of a Public Docket; Request for Recommendations," 90 Federal Register 13428, March 24, 2025.
EPA Docket, "Implementation of the Definition of Waters of the United States," EPA-HQ-OW-2025-0093, https://www.regulations.gov/document/EPA-HQ-OW-2025-0093-0001/comment.
EPA, "Public Outreach and Stakeholder Engagement Activities," https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities.
E.g., 1986 Corps Rule, pp. 41206, 41251.
U.S. Congress, Senate Environment and Public Works Committee, Improving the Federal Environmental Review and Permitting Process, hearing, 119th Cong., 1st sess., February 19, 2025.
U.S. Congress, House Transportation and Infrastructure Committee, Water Resources and Environment Subcommittee, America Builds: Clean Water Act Permitting and Project Delivery, hearing, 119th Cong., 1st sess., February 11, 2025, H.Hrg. 119-6.
U.S. Congress, Senate Environment and Public Works Committee, Examining the Implications of Sackett v. U.S. Environmental Protection Agency for Clean Water Act Protections of Wetlands and Streams, hearing, 118th Cong., 1st sess., October 18, 2023, S.Hrg. 118-266; U.S. Congress, House Transportation and Infrastructure Committee, Water Resources and Environment Subcommittee, Hearing on Stakeholder Perspectives on Impacts of the Biden Administration's Waters of the United States (WOTUS) Rule, 118th Cong., 1st sess., February 8, 2023.
U.S. Congress, House Committee on Agriculture, For the Purpose of Receiving Testimony from The Honorable Michael Regan, Administrator, U.S. Environmental Protection Agency, hearing, 118th Cong., 1st sess., April 19, 2023.
5 U.S.C. §§ 801-808. The CRA allows Congress to overturn certain agency actions in the form of a joint resolution of disapproval. Under the CRA, if both houses pass a joint resolution for disapproval, it is sent to the President for signature or veto. If the President vetoes a resolution, Congress can vote to override the veto with a two-thirds majority in both chambers. If a joint resolution of disapproval is submitted within the CRA-specified deadline, passed by Congress, and signed by the President (or if Congress votes to override a presidential veto), the disapproved rule "shall not take effect (or continue)" and would be deemed not to have had any effect at any time. Furthermore, if a joint resolution of disapproval is enacted, the CRA provides that a rule may not be issued in "substantially the same form" as the disapproved rule unless it is specifically authorized by a subsequent law. For more information, see CRS In Focus IF10023, The Congressional Review Act (CRA): A Brief Overview, by Maeve P. Carey and Christopher M. Davis.
See H.J.Res 27 under "Actions."
Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024). For additional information, see CRS Report R48320, Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law, by Benjamin M. Barczewski. See also West Virginia v. EPA, 597 U.S. 697 (2022).